Top five immigration stories of 2011, #4: Birthright citizenship

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Photo by Victoria Bernal/Flickr (Creative Commons)

The political battle over birthright citizenship exploded almost a year ago, when a series of states began introducing bills seeking to cut off the children born to undocumented immigrants from automatic U.S. citizenship.

The United States, like most countries in the Americas but unlike many European nations, has had a longstanding practice of jus soli citizenship, meaning citizenship is granted to those born on U.S. soil (jus soli is Latin for "right of the soil). Other nations, such as Germany, abide by versions of jus sanguinis (Latin for “right of blood”) citizenship, which there is granted only to children of citizens and/or legal residents.

The notion of barring the children of undocumented immigrants from receiving U.S. citizenship had long lingered on the more extreme fringes of the immigration restriction lobby. But in the anything-is-possible climate that followed the approval of Arizona's stringent SB 1070 last year, a group of like-minded state legislators banded together and, with the aid of attorneys who worked on SB 1070, created one-size-fits-all model state legislation that would distinguish between babies born to undocumented immigrants and other children when issuing state birth certificates.

Bills based on this model were introduced in several states, including four related bills in Arizona. The idea was to force a Supreme Court reinterpretation of the 14th Amendment of the U.S. Constitution, which since a landmark 1898 ruling has been interpreted as defining how citizenship is bestowed on those born in this country. Here's Section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While it seems self-explanatory, opponents of the 1898 definition (which came out of a legal challenge from a young San Francisco-born Chinese American named Wong Kim Ark) argued otherwise. Here's what John Eastman, a Chapman University law professor who along with Kansas Secretary of State Kris Kobach helped draft the model bill, wrote in a 2006 legal paper:

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpre-tation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.

The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil.

Anti-birthright citizenship bills were introduced in states that included Arizona (where four related bills were introduced), Iowa and Indiana; a related U.S. Senate resolution seeking a constitutional amendment was introduced by GOP legislators from Kentucky and Louisiana.

In the end, the bills didn't get much traction. In Arizona, where two of the anti-birthright citizenship bills were voted on in the Senate, these and three other strict anti-illegal immigration bills (including one requiring hospitals to check immigration status, and another “omnibus” bill that would bar undocumented immigrants from public services) were voted down in March.

Much speculation followed: Had the anti-birthright citizenship frenzy contributed to a jump-the-shark moment for immigration restriction in the nation's statehouses?

As the last several months have shown, not entirely. While the action has cooled in Arizona, as evidenced most recently by the recall of SB 1070 sponsor and former state Sen. Russell Pearce (also a champion of the anti-birthright citizenship movement), other states such as Georgia, Alabama and South Carolina have since enacted their own strict anti-illegal immigration laws.

And while none of these have included an anti-birthright citizenship component, their relative success - in spite of court challenges - has shown that state-level immigration initiatives have yet to lose their popularity.

As for the state-to-Supreme Court trajectory that the architects of the anti-birthright citizenship bills envisioned, based on what they hoped would happen with SB 1070? The high court is set to take on the SB 1070 case early next year, a ruling that could make or break the state law trend. But that's for another story this week.

Previously in Multi-American

In Southern California, generations of immigrants are creating an evolving definition of "American." Multi-American is your source for news, conversation and insight on this emerging regional and national identity.